On the Texas Cheerleader Religious Banner Controversy

Here is the controversy: Some cheerleaders at a Texas public school wish to display signs and banners with religious messages on them at high school football games (e.g., “If God is for us, who can be against us?”). Nothing about the signs involves the public school, other than that the venue in which they are displayed is at a public school football game. The public school superintendent banned the signs. And a state court judge in Texas has issued a temporary injunction against the government from forbidding the cheerleaders from displaying their signs. The injunction is here, but it says nothing about the merits.

And here is the New York Times story today: It doesn’t really discuss the law much but instead paints a sort of man-of-conscience-against-a-hostile-world picture of the superintendent, just as it did for a recent story in Rhode Island involving a student who opposed the display of some religious language on a sign in a public school. I’m sure the superintendent in the Texas case is a very nice man who is just trying to do his job. It’s probably too much to ask of the Times that it stop the irritating practice of painting American communities as villains. They’re probably just composed of people who are doing their best to live according to their own lights of the good life, and in ways that at least one court believes the law permits.

It’s a shame that the Times story doesn’t discuss more about the law. From what I understand (though I could be wrong) the issue was originally that legal counsel for the superintendent believed that the banners violated the Establishment Clause as interpreted by the Supreme Court in the Santa Fe case. But at some point that defense to the lawsuit dropped out, and now both sides agree that the signs do not violate the Establishment Clause (I find this representation at p.5 of this motion by the Texas Attorney General to intervene in the case). It seems that the issue now turns on whether the speech here is characterized as public or private speech. But this is confusing to me, because Santa Fe involved exactly the issue of whether the speech was public or private — the majority and the dissent disagreed on that question. The Court in Santa Fe held that the school-instituted two-step election process, in which a student vote about whether a message would be communicated was followed by another vote about who would deliver the message, was basically the government’s impermissibly majoritarian policy and therefore government speech. Obviously the situation is different in this case, and it would require a significant extension of Santa Fe to cover the cheerleaders’ signs. But I do not understand why, per the representation of the Texas AG, all sides agree that Santa Fe does not apply. Perhaps readers can offer illumination.

UPDATE: Do see Paul Horwitz’s discussion of the case here. Paul points out that the NY Times also has an editorial out today in which it characterizes the cheerleaders’ actions as a violation of Santa Fe (as explained above, I do not think this is accurate if the facts are as reported), and official support for the cheerleaders’ actions as follows: “These officials are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one. “

Marc, I’m not sure why the parties agree that Santa Fe doesn’t apply either. I agree that without more facts the situation would indeed be different in this case, but in fairness I haven’t found any really decent discussions of the facts, and it may be that more fact development would find official involvement in the practice, which would make it much more similar, if not identical, to Santa Fe.

Also, while I appreciate why you’re irritated at the Times’s narrative re the coach and the townsfolk, one needn’t counter that narrative with a “salt of the earth just trying to do right by their own lights” narrative either. Of course that will often be true, but there is also a demonstrable history of some members of that majority using both public and private, and sometimes illegal, means of coercing or threatening the dissenting minority (some of whom, of course, are religious themselves and also trying to act rightly by their lights) in these cases. Recall Santa Fe itself, in which the district court had to sternly order the school district to stop trying to ferret out the identity of the Doe plaintiff in that case–and that’s just the tip of the iceberg. One shouldn’t taint everyone by the conduct of some, but neither need we ignore the possibility that such incidents are the natural and predictable outcomes of these practices, something that should be of special concern in those cases in which public officials themselves are involved in either the practice or the efforts to harass or exclude minorities.

Paul, thanks for the comment. I am glad that you agree that Santa Fe continues to seem to be the bone of contention, and I agree too that I have not found much to explain what is going on in this case.

I also agree that perhaps I put the point on behalf of the communities more favorably than they may on occasion deserve, though since the Times makes it a point of principle never to be charitable to those communities, one can perhaps forgive the slip. On the constitutional merits of Santa Fe, this is a case where, as you know, you and I disagree. I do not believe that the process in place in Santa Fe violated the Establishment Clause. And on the question of cause and effect, these are complicated issues. It might be that the incidents you refer to are the natural and predictable results of practices such as what the school had in place; and it might also be, at least in part, that those incidents are the natural and predictable results of an over-reading and misinterpretation of the Establishment Clause, whose effects we continue to experience today. None of that is to say that the incidents you are talking about are not problematic; they are. But the causes of the problem are, in my view, complicated, and particularly susceptible of aggravation by the Supreme Court.

Please. In Texas football is religion and that religion is fundamental evangelicalism. It took a very very long time to stop the benedictions and the football players and coaches still gather for prayer on the field before every game. This is just another volley in the war,